Wading into the heated national debate about same-sex marriage and the ability of businesses to deny certain services to gays, U.S. Attorney General Eric Holder this week suggested that his state counterparts are not obligated to defend laws they consider discriminatory. And just in time, too: A bar owner has banned opponents from his establishment because he doesn't “want your kind in here.”
Did I forget to mention that the tavern in question is not in Arizona, where Gov. Jan Brewer bowed to mounting pressure and vetoed a bill supporters said was needed to protect business owners' religious freedom? It's in southern California, and owner David Cooley is refusing service not to gays but to “crazy, ignorant or stupid” lawmakers who support traditional marriage.
No word yet as to whether Holder will condemn Cooley's policy as bigoted or hail it as enlightened – which of course indicates the battle over gay rights has undermined not only our language and respect for the law but also the understanding of our own history.
Holder is not the first to paint today's gay-rights movement as the successor to the civil-rights movement of the 1950s and 1960s. But the comparison is superficial at best. Where blacks were denied basic rights and even their own humanity simply because of skin color, today's debate centers on activity: Should marriage be limited to one man and one woman?
That debate is not new, nor is it intrinsically “anti-gay.” Utah was denied statehood, for example, until it passed a new Constitution in 1895 outlawing polygamy. The same could be said for Arizona's proposed update to its Religious Freedom Restoration Act of 1999, which was itself a state version of federal law passed in 1993 in response to a Supreme Court Decision that did not protect the First Amendment freedom of Native Americans who used peyote during religious ceremonies.
If the photographers and bakers who have objected to serving at same-sex weddings on religious grounds had refused to serve gays under any circumstances, Holder's analogy would be appropriate. But they have said they simply do not want to participate in ceremonies that violate their religious beliefs, not even for profit. That position is no more or less discriminatory than Cooley's refusal to sell a beer to conservative legislators. Nor did the proposed Arizona law allow discrimination to masquerade as faith. An assertion of religious freedom would have required proof that an actual religious belief was at stake, and that the state had placed a substantial burden on exercising that belief.
Eventually, perhaps even quickly, society will sort this all out – unless the courts and politicians prolong and inflame the battle, as happened with abortion 40 years ago. And that is precisely why Holder's statement was not only unfortunate, but dangerous. He was not forced to serve as attorney general, but did so willingly after taking an oath to support and defend the U.S. Constitution. Bans on same-sex marriage may or may not ultimately be declared unconstitutional, but that decision is not Holder's to make.
Anyone tempted to applaud Holder's defense of lawlessness should reconsider. Imagine the outcry if a Republican attorney general had urged states to ignore “discriminatory” laws. Affirmative action could be outlawed as unfair to whites or men; abortion as an attack on the very young.
The courts are a far from perfect venue for deciding such things – slavery and Jim Crow were ended legislatively, lest we forget – but even judicial fiat is preferable to a rogue and philosophically inconsistent attorney general who considers himself far too enlightened to wait for the rest of us to catch up.
Keep project on right track
Fort Wayne and Allen County officials have now pledged a total of $250,000 toward a $2 million study supporters hope will bring high-speed rail to Fort Wayne and other northern Indiana cities. But what if the study ultimately recommends a route that bypasses this or some of those other cities?
That nightmare scenario is unlikely but possible, leaders of the Northern Indiana Passenger Rail Association acknowledge. NIPRA President Fred Lanahan said the “tier one” environmental impact study will assess the suitability of several existing rail lines, including the preferred route connecting Chicago and Columbus, Ohio, through Fort Wayne, Warsaw, Columbia City, Plymouth and Gary. The study will consider the capacity, condition, load potential and environmental impact of each route before selecting the best one, Lanahan said.
Lanahan said “there's always a certain degree of uncertainty” in such things, but believes the population centers and economic potential along the preferred route – supporters say it could create the equivalent of 26,800 full-time jobs by 2020 – make it the clear favorite. But if I were a politician who just agreed to spend money on the study, I'd be leaving as little to chance as possible.